Federal Court of Australia

Mai v Minister for Immigration and Citizenship [2025] FCA 810

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

1    The Applicant held a Class BS Subclass 801 Partner (Residence) Visa (Partner Visa). That visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) following the Applicant being convicted and sentenced to a term of imprisonment of more than 12 months. The Applicant made representations to have the cancellation decision revoked. A delegate of the Minister decided not to revoke the mandatory cancellation on 3 August 2023. The Administrative Appeals Tribunal (as it was then named) (the Tribunal) affirmed the decision of the Minister’s delegate on 23 October 2023.

2    By the present application, filed on 30 May 2025, the Applicant seeks an extension of time in which to seek judicial review of the Tribunal’s decision.

3    For the reasons set out below, I have decided it is not in the interests of justice to grant the extension of time sought.

Background

4    The Applicant relied upon two affidavits of Sam Angelatos dated 30 May (First Angelatos Affidavit) and 4 July 2025 (Second Angelatos Affidavit) (together, the Angelatos Affidavits). The Minister relied upon three affidavits of Ms Samanda Liddy dated 23 June, 2 July and 4 July 2025. This summary of the background facts is largely drawn from those affidavits.

5    The Applicant is a Vietnamese national who first arrived in Australia on 11 March 2012 and was later granted the Partner Visa.

6    On 26 June 2017, he was sentenced for one charge of cultivating a narcotic plant in a commercial quantity, one charge of theft, one charge of possessing a drug of dependence – namely three grams of methamphetamine – and one charge of dealing with the proceeds of crime. In imposing the sentence of imprisonment, the sentencing judge noted the potential for the Applicant’s visa to be cancelled and the uncertainty that this created for the Applicant. He was sentenced to a total effective sentence of two years and five months’ imprisonment with a non-parole period of 16 months. His Partner Visa was mandatorily cancelled under s 501(3A) of the Act. On 28 September 2017, a delegate of the Minister revoked that decision under s 501CA(4) of the Act.

7    Following his release from prison, the Applicant committed further offences. On 14 May 2021 he was sentenced to a total effective sentence of three years and five months’ imprisonment for one charge of cultivating a commercial quantity of cannabis, one charge of theft of electricity and one charge of possession of methylamphetamine.

8    On 23 June 2021, his Partner Visa was mandatorily cancelled again, and on 3 August 2023, a delegate of the Minister decided not to revoke that decision. The Applicant lodged an application for review of the non-revocation decision with the Tribunal. On 23 October 2023 the Tribunal affirmed the non-revocation decision.

9    On 13 August 2024 the Applicant applied for a Protection (Class XA) (Subclass 866) visa (Protection Visa). That visa was refused by a delegate of the Minister, and the Tribunal affirmed that decision on 6 January 2025. Judicial review of the refusal of the application for a Protection Visa has not been sought.

Principles applicable to an extension of time

10    A person has 35 days within which to seek judicial review of a migration decision in the Federal Court (Act, s 477A(1)). Upon application by the applicant, that period may be extended if the Court is satisfied that it is necessary in the interests of the administration of justice to do so (Act, s 477A(2)).

11    The Applicant’s request for an extension of time was filed on 30 May 2025, which is approximately 18 months after the period provided for by the Act.

12    The only truly mandatory consideration in such a matter is the interests of the administration of justice (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ)). However, a range of cases have identified a number of factors that are relevant to that issue, including:

(1)    the length of the delay in seeking judicial review;

(2)    whether there is an adequate explanation for the delay;

(3)    prejudice to the Minister and third parties; and

(4)    the merits of the underlying application.

13    In this case there is no suggestion of prejudice to the Minister or third parties occasioned by the delay. I will therefore turn to consider the balance of the factors in my overall analysis of the interests of the administration of justice.

Length of and explanation for the delay

14    The present application is 18 months out of time. Most of the explanation for the delay was proffered via hearsay in the Angelatos Affidavits (the second of which was filed on the morning of the hearing). It was not suggested by the Minister that the hearsay material was inadmissible, or that the Minister suffered prejudice by reason of the late filing of the Second Angelatos Affidavit. A further explanation for delay was proffered during the course of reply oral submissions. In summary, the reasons given for the delay are that the Applicant:

(1)    received legal advice shortly after the Tribunal’s decision that the prospects of challenging the Tribunal’s decision were low;

(2)    was not in a financial position to afford legal representation and had exhausted his financial resources, until assistance was provided by family in 2024;

(3)    was seriously distressed by his circumstances, described as “a state of hopelessness, despair, psychological lethargy and if not actual clinical depression, a state of mind not dissimilar to depression”. The Applicant’s counsel appropriately accepted that there was no medical evidence supportive of a diagnosed mental condition;

(4)    there were reasons subject to legal professional privilege that his extension of time was not lodged earlier; and

(5)    was focused upon his Protection Visa application.

15    Taking each of these matters in turn, I make the following observations:

(1)    Prospects advice: In this case, no formal advice was provided after the Tribunal’s decision. Rather, the relevant “advice” was the opinion of the lawyers who previously acted for the Applicant expressed in a relatively informal manner after the Tribunal handed down its decision. The Minister pointed to authority which has eschewed the inability to obtain favourable legal advice as being a proper explanation for delay. In Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; 75 ALJR 470, McHugh J, exercising the original jurisdiction of the High Court, observed at [17]:

An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.

I consider that the failure to obtain favourable legal advice immediately following the Tribunal decision is not a sufficient explanation for the delay.

(2)    Financial capacity: There is a paucity of evidence as to financial capacity. The only evidence of this nature is contained in the Angelatos Affidavits, which do not annex any records or other material which would permit me to assess the Applicant’s income or expenditure during the relevant period, or the anticipated cost of obtaining legal representation. However, I accept that he is of limited means. The Angelatos Affidavits state that the Applicant has received financial assistance from his family to obtain legal representation in this appeal. He has not, however, explained why he was unable to access funds for a review application during the 35-day appeal period, when he is able to do so now. The First Respondent submitted that it appeared that the Protection Visa matter had been pursued with the assistance of migration agents, and that this indicated that the Applicant was not entirely financially impecunious. From the Bar table, I was told that this assistance was provided pro bono. This is not a factor that particularly assists the Applicant given the lack of explanation as to why the funding available to him now was not available sooner, or what steps he took earlier to obtain funding.

Moreover, the Minister pointed to authority which states that financial impecuniosity alone is not an acceptable explanation for delay. In SZMNO v Minister for Immigration and Citizenship [2009] FCA 797, Barker J said at [24]-[26]:

The Court accepts that generally speaking, the impecuniosity of the applicant was the reason he did not immediately lodge an appeal against the FMC decision when advised by his agent. Even so, there is extensive authority that this alone is not an acceptable explanation.

In BRGAO v Minister for Immigration and Citizenship [2009] FCA 126, Spender J dealt with a similar explanation for delay to the present applicant's. At [16]-[17], his Honour found as follows:

In this case, the applicant said that the reason for the delay, short though it is, was because of financial constraints. The Full Court in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] said:

... The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the appellant’s failure to pay his solicitors’ fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an appellant for filing an application for leave to appeal.

That is the only reason advanced to explain the delay. It is not an acceptable explanation in the light of those authorities, nor does it satisfy the requirement of special reasons for the grant of an extension of time in O 52 r 15(2).

The Court therefore finds that the applicant's financial constraints are not an acceptable explanation for the delay in filing his notice of appeal.

(3)    Distress: I accept that the Applicant was distressed by the non-revocation of the decision to cancel his Partner Visa. However, there is no evidence of a depressive disorder or other matter which would suggest that the Applicant was not capable of pursuing his rights, or that would otherwise weigh particularly in the Applicant’s favour.

(4)    Privileged reasons: There was a suggestion that part of the delay was for reasons that are confidential and subject to legal professional privilege. It was open to the Applicant to waive that privilege: in the absence of taking that step, it is not appropriate for me to give weight to that factor.

(5)    Focus upon the Protection Visa: The submission that the Applicant was pursuing his Protection Visa does not assist him. It demonstrates that he was able to take steps in a legal proceeding and tells against the notion that he was, until recently, so distressed as to be unable to press forward with his present application. Applying for the Protection Visa and seeking review of the delegate’s decision are not mutually exclusive courses (see AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 at [34(g)] (Farrell J)), and there is no proper reason that this application should have not been made until the determination of that application. Moreover, this explanation was belatedly proffered from the Bar table and is not the subject of even hearsay evidence.

16    Overall, I do not consider the reasons proffered by the Applicant to be matters that materially assist him to establish that the extension is in the interests of the administration of justice.

17    However, I accept that the consequences of refusing his application are significant in that he will almost certainly be returned to Vietnam if the extension of time is not granted. It is thus important to consider the underlying merit of his application.

Merits of proposed application

18    The one ground identified in the Applicant’s proposed originating application under s 476A of the Act is:

The AAT did not properly apply clause 7.3(3) of the Direction No. 99 Migration Act 1958 - Direction under section 499 Vissa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (clause 7.3(3)) in considering the effect the of the revocation of the Applicant’s visa would have on the applicant's children who are Australian citizens.

19    The Applicant was granted leave to file an amended proposed application, but did not do so. In any event, as the argument developed, it became clear that the originating application would need to be amended if the application were to progress. In effect, the Applicant argues that there are a number of defects in the Tribunal’s decision connected with its understanding of the facts underpinning, and approach to the consideration of, the best interests of minor children. The Applicant has two children, aged nine and 11 at the time of the Tribunal’s decision. Each complaint is considered below.

20    Given the submissions of the parties, it is necessary to briefly discuss the extent to which it is appropriate, in an application under s 477A(2), to consider the merits of the proposed application. While it “will often be appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’” (Katoa at [17], quoting CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; 285 FCR 447 at [19]), the Minister relied on the statement from Katoa at [18] that (citations omitted):

there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard.

21    The Minister submitted that the delay in this case was lengthy and not adequately explained and that, accordingly, it is necessary for the Applicant to show that his case is strong or exceptional. Ultimately, given my views on the merits of the case discussed below, it is not necessary to rely on this proposition to dispose of this application. In my view, the application is not reasonably arguable, and can properly be described as hopeless, not merely weak (see Katoa at [16]-[17], citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [65] (Mortimer J, as her Honour then was), quoting Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J)).

Unreasonableness due to mistake as to facts

22    The Applicant’s first complaint was that the Tribunal considered the best interests of his children on the mistaken factual basis that it was uncertain whether his wife and children would remain in Australia, or accompany the Applicant to Vietnam, if the cancellation decision was not revoked. It was also put on the basis that the “AAT was still undecided as to whether the children would move to Vietnam”.

23    The Applicant argued that the evidence established that his wife and children would remain in Australia if he was removed to Vietnam. This argument was put in a range of ways: that the Tribunal’s approach was unreasonable, or lacking in an evidentiary foundation and therefore infected by jurisdictional error.

24    The evidence before the Tribunal was that if the Applicant returned to Vietnam, his children would want to follow him to Vietnam, but that his wife’s intention was that her and the children would remain in Australia. That intention was made clear in her statement to the Tribunal, which stated:

I think that if our sons were told that Quang Huy could not come back home, they would want to follow him to Vietnam. But I cannot let this happen. Both our sons were born in Melbourne, they consider themselves Australian, speak English and speak very little Vietnamese, especially [A]. They have gone to school in Melbourne and have built their life here with us and their friendship groups. They have not lived in Vietnam at all and I don’t want them to go back as the education, quality of living and opportunities they have here will not be afforded to them in Vietnam.

Also, because they don’t speak Vietnamese, they would need to go to an international school in Vietnam, which we could not afford. My husband has not lived in Vietnam since 2012. I had not lived in Vietnam since 2008 and I now have no immediate family there. We have not had a job or worked in Vietnam for over a decade. Without any emotional support or the funds to relocate, and with the prospect of unemployment in Vietnam for a long period of time, I don’t think it is possible to uproot our family and move our young children to Vietnam.

Even though I know I must stay in Australia, I don’t know how I will raise our children on my own without his support. It will be impossible for my husband to send me and our sons any money if he goes to Vietnam. His level of education is very low. If he gets a job, it will a labouring job. And the pay is very low for that kind of work. This is one of my worries about him going back to Vietnam and not being around for us. At the moment it’s very difficult for me to manage working and childcare with two young children. I am young now and can work, even though it is difficult. But I know that their needs will change as they get older and they will need even more money and time from me. I am really in dire straits, and I am worried it will only get harder and harder for me.

25    The Tribunal analysed the impact of the separation of the Applicant from his children from the perspective of the children. The Tribunal began by observing a number of matters that weighed against revocation, including that the Applicant’s offending occurred in premises where his children lived. The Tribunal then discussed at length the difficulties that the children would face if the Applicant’s wife decided to remain with them in Australia, including the lack of the Applicant’s financial support, and the emotional impact of the absence of a close relationship with their father. The Tribunal stated at [102]:

It is accepted that if the Applicant is deported and Ms AL decides to remain in Australia with the children, they will lose his direct emotional, practical, and financial support. That said, Ms AL has supported her family during the Applicant’s incarcerations, receives taxpayer funded benefits, has some superannuation and other savings, and is supported by a sister who lives nearby and a cousin from Vietnam who currently lives with her and shares costs. The Applicant can communicate with the children as he has done during his imprisonment via telephone calls and occasional visits. It is accepted this is a poor alternative to the positive influence a loving and present father can have. As the children get older, they may also more keenly feel the absence of a close relationship with the Applicant, which has the potential to cause continuing adverse emotional impacts.

26    The Tribunal also considered the impact on the children of the cancellation of the Applicant’s visa based on the counterfactual that his wife decided to relocate to Vietnam. The Tribunal stated at [103]:

The children are relatively young at 9 and 11 years of age, still at primary school, and have dealt with the Applicant’s absence for about 4 years now. The Tribunal accepts there are adverse consequences irrespective of what decision is made about their future. Relocating the children to Vietnam would maintain a physical bond with the Applicant and enable coparenting but requires the children to adapt to a new education system and social environment in Vietnam. They would have to leave behind friends, teachers, and others they have grown close to in Australia. Without seeking to diminish the disruptive impact, pre-teenage children may adapt more readily to such a change, including if assisted by relatives in Vietnam. Notwithstanding the explanations given, the Tribunal finds the evidence about the children’s inability or very limited ability to speak Vietnamese overstated. If the choice is made for the children to remain in Australia on the other hand, this would adversely impact their bond with the Applicant, likely diminish his ability to contribute financially to their needs, and maintain single-parent pressures on Ms AL.

27    The Tribunal ultimately considered that “[t]he best interests of the children are served by revocation, and, on balance, this primary consideration carries moderate weight”.

28    The Applicant argues that the Tribunal was mistaken as to the existence of a possibility that the Applicant’s children might relocate to Vietnam with him at some stage in the future. It was said that it was necessary for the Tribunal to make a final decision about whether the Applicant’s children would live in Vietnam or Australia before it could determine how their interests would be affected. It was said that the failure to do this was a jurisdictional error.

29    The Applicant sought to rely on Deng v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 260 (Deng). He argued that this case stood for the proposition that taking into account an unrealistic scenario was a jurisdictional error. Deng does not assist the Applicant. In that case, the applicant was a national of South Sudan and the Tribunal considered that it was unlikely he would be returned to South Sudan if the non-revocation decision was affirmed, considering instead what it called the “realistic outcome” that he would be released into the Australian community, subject to strict supervision. The best interests of the children were then assessed on the basis of the applicant’s return to South Sudan – the less likely outcome. This was found to be an error because the Tribunal did not consider the best interests of the minor child “by reference to its assessment of the practical reality of the position that would prevail” (at [27] (Shariff J)).

30    In this case, the Tribunal did not consider the best interests of the Applicant’s minor children by reference to a factual premise which the Tribunal had stated was unrealistic. Nor was the factual premise on which the Tribunal proceeded one which had no foundation in the material before it, in the sense discussed by Perram J in PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 at [67]-[68].

31    Reviewing the Tribunal reasons as a whole, the Tribunal considered the best interests of the children on the basis that the Applicant’s children would be likely to remain in Australia, chiefly at [102] (extracted above).

32    The comments of the Tribunal’s reasons which follow at [103] do no more than identify a possible future scenario which the Tribunal considered remained possible albeit unlikely. The Tribunal was effectively considering whether either alternative altered the analysis of the interests of the children, and concluded that it did not. Given the age of the children, and the evidence that they would want to go to Vietnam if the Applicant were removed from Australia, there was nothing in this approach which was unreasonable. It did not represent a failure by the Tribunal to take into account any particular evidentiary matter, and it did not amount to proceeding on an incorrect understanding of the facts.

Inadequate consideration of best interests of the minor children

33    The Applicant submitted that the Tribunal considered the best interests of the child in one paragraph, and that this was “inadequate, fragmentary and not enough to carry out the proper evaluation of a primary consideration”. It was also alleged that the AAT did not explain how it came to the conclusion that “this primary consideration carries moderate weight”. While it was not entirely clear, I understood this alleged error broadly, as being one directed at an argument that there are insufficient reasons for a conclusion (or a failure to include findings on a material questions of fact), or a failure to take into account relevant considerations, or an argument as to unreasonableness, arising from the conclusions relating to the best interests of the children.

34    However characterised, the Tribunal’s consideration of the best interests of minor children spanned some 15 paragraphs. The Tribunal considered the evidence relevant to what was likely to happen to the children, and identified factors which weighed both in favour of and against revocation. It then reached a conclusion that was self-evidently based on that analysis. That analysis was not unreasonable, nor did it amount to a failure to give reasons. It appears that the Applicant disagrees with the conclusions reached, but that is not a basis for establishing legal error in this Court. I do not consider a ground based on these alleged failures to be reasonably arguable.

Irrelevant considerations

35    The Applicant submitted that the Tribunal took into account an irrelevant consideration in its consideration of the best interests of minor children when it stated:

It is noteworthy that the prospect of deportation and the children being raised without a father were insufficient to prevent the Applicant from reoffending approximately 2 years after being released from prison for the first cultivation offence.

36    The Applicant submitted that “in terms of the best interests of minor children in Australia, in my submission, that needs to be considered independently of the criminal activity”. The Applicant submitted that, by taking into account the criminal offending in considering the best interests of minor children, the Tribunal took into account an irrelevant consideration.

37    Ministerial Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) provides the following mandatory consideration in cl 8.4(4)(c):

(4) In considering the best interests of the child, the following factors must be considered where relevant:

…

(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

38    The Minister submits that the Tribunal was required by cl 8.4(4)(c) of Direction 99 to consider the impact of past criminal offending on the children, and the impact of any likely future conduct. The Minister submits that this consideration is what the Tribunal was taking into account in the observation impugned by the Applicant.

39    The Tribunal’s statement must be read in context. It is part of an overall analysis considering the impact of future offending on his children. The Applicant’s evidence before the Tribunal included that he would not reoffend because he had to be a good influence on his children, recognising the link between his offending and the impact upon his children. At [101], the Tribunal made an observation relevant to its consideration of the Applicant’s risk of reoffending:

The Applicant’s ability to play a positive parental role, however, continues to be conditioned by the extent to which he can avoid relapsing into drug or gambling addictions, better dealing with financial pressure, and resisting the influence of adverse peers. As expressed earlier, the Tribunal is unpersuaded by his ability to do so.

40    Read in context, the comment at [100] was directed towards the level of the Applicant’s risk of reoffending as part of its analysis of the impact of future conduct on the children. It cannot be said that the impugned comment is an irrelevant consideration such that it involved jurisdictional error to even observe that link. I therefore do not consider that this ground is reasonably arguable.

Failure to differentiate between the interests of the two minor children

41    The Applicant argues that the Tribunal’s failure to consider the differing effects of the Applicant’s removal from Australia on each of the children individually amounted to a failure to consider a mandatory consideration provided for by Direction 99. The only basis on which the Applicant submitted that the children’s interests relevantly differed was their ages, and the fact that the older child would soon be completing primary school. It will be recalled that one child was nine, and the other was 11, at the time of the Tribunal’s decision. The Applicant submitted that the effect of the Applicant’s removal on the younger child would “inevitably be more significant”.

42    Ministerial Direction 99 at 8.4(3) states:

If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

43    The Applicant could not point to any submission made to the Tribunal that sought to argue there was a relevant difference in the interests of the children, nor does it appear that such a position was put before the Tribunal.

44    The Minister submits that this submission invites the Court to consider a case that was not advanced before the Tribunal, and seeks impermissible merits review.

45    I consider that in light of the evidence and submissions of the parties it was clearly open to the Tribunal to consider the best interest of minor children on the basis that the interests of the children did not relevantly differ. The point was not developed before the Tribunal below. I do not consider it open to assert material error on that basis in the circumstances of this case.

Failure to make adequate findings

46    The Applicant submitted that the Tribunal’s statement that “the Tribunal has concerns about some of [the Applicant’s] prior conduct involving the children” amounted to jurisdictional error. In written submissions, the Applicant submitted that the identification of a concern “had marginal if any probative value”, “[f]or all practical purposes [could] be swept aside”, and that “[t]he use of the term ‘concern’ meant that the decision-making process was flawed” (emphasis in original). In the course of oral submissions, the Applicant clarified that it was not the mere use of the word “concern” which established a flawed reasoning process, but instead “simply that a concern is not a finding and it’s just a concern. So the matters adverse to the applicant… are not findings against the applicant”.

47    The Applicant sought to rely on Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) to argue that a concern could not amount to a finding. That case is different from the present. It involved review of a Tribunal decision affirming a refusal to grant a student visa, which turned on whether the applicant genuinely intended to stay temporarily in Australia. Chief Justice Allsop considered that a statement by the Tribunal that “the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia” was not a finding that the applicant intended to stay indefinitely in Australia. Rather, it was a doubt about the applicant’s primary or motivating purpose to stay in Australia. The error in that case was treating a concern about purpose as dispositive of the question of the applicant’s intention to stay temporarily.

48    The Minister submitted, and I accept, that Eros is not authority for the proposition that decision-makers cannot have concerns or use the expression “concern”, nor that such concerns can never be taken into account. The Minister submitted that the concern expressed by the Tribunal was about a finding that the Applicant’s offending and other serious conduct occurred in the presence of, or endangered, the children.

49    In this case, the Tribunal identified its concerns about the Applicant’s conduct involving the children. Those concerns were based upon particular findings:

As noted above, the Tribunal has concerns about some of his prior conduct involving the children. This includes bypassing electricity connections in two homes they lived in, which possibly constitutes a safety hazard. He also cultivated cannabis crops inside the premises and possessed/smoked ice on the property. The Applicant’s claims about taking steps to ensure the children were kept separate from the cannabis crop and not exposed to his ice use are little to the point. The presence of these drugs in a residential property occupied by minor children is concerning, irrespective of precautions taken.

50    The findings of the Tribunal were that the Applicant had bypassed electricity connections which “possibly constitutes a fire hazard“ and “[h]e also cultivated cannabis crops inside the premises and possessed/smoked ice on the property”. It was these findings that caused concern for the Tribunal. Nothing in Eros suggests that such an approach is not available. Nor do I otherwise perceive error in this approach.

Failure to consider legal consequences of the decision

51    The Applicant advanced a further argument, not relevant to the best interests of minor children consideration. By this argument, the Applicant contended that the Tribunal failed to take into account the legal consequences of its decision stemming from the operation of special return criterion 5001 in schedule 5 of the Migration Regulations 1994 (Cth). The Applicant submitted that if the cancellation decision was not revoked he would not satisfy special return criterion 5001, with the consequence that he would “for all practical purposes, be banned from Australia for the term of his natural life”.

52    As I discussed in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [71]-[76], there remains some doubt as to whether special return criterion 5001 is a mandatory consideration, having regard to the separate reasons of Flick J and Bromberg J in DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236.

53    The Minister submitted that it is not necessary for me to determine that issue in this case, because I ought to be satisfied that, in any event, the Tribunal understood and took into account the legal consequences of its decision. I agree. In particular, the Tribunal clearly considered that the consequence of it affirming the non-revocation decision would be that the Applicant was removed to Vietnam permanently. As discussed above, it clearly considered the best interests of minor children by reference to that factual underpinning.

Disposition

54    I consider that the Applicant has not articulated a ground of review with any reasonable prospect of success. I also consider that the length of the delay is substantial, and that there is no adequate explanation for the delay.

55    Accordingly, I will dismiss the application. I will hear the parties on costs, if necessary.

Associate:

Dated:    17 July 2025